Could the very foundation of Canadian democracy be unconstitutional? That was the provocative argument made by a pair of electoral-reform groups last year in a unique legal challenge. Fair Voting BC and the Springtide Collective for Democracy claimed in Ontario Superior Court that Canada’s time-honoured first-past-the-post (FPTP) voting system – the basis for all Canadian elections going back to before Confederation – actually violates the Canadian Charter of Rights and Freedoms.
The groups argued that FPTP impedes Canadians’ Section 3 right to vote because it allows governments to be formed without gaining an outright majority of public support. Under FPTP, a candidate in any constituency need only gain a plurality of votes to be declared the winner. That, in turn, can enable the most popular party to gain a majority of seats while falling far short of a majority of votes. Given that most Canadian provinces and the federal Parliament have three or more significant parties, the FPTP system means that more voters are typically dissatisfied with the outcome of any particular election than support it. FPTP, the activists alleged in their court filing, “routinely allows a minority of voters to dominate the majority, arbitrarily violates the principle of voter parity, fails to represent significant minority views unless they are geographically concentrated, and discourages voter participation in general elections.” Finally, they claim FPTP is also sexist and racist, since it apparently “incentivizes parties to place white men in most winnable ridings.”
Instead of FPTP, Fair Voting BC and the Springtide Collective demanded the court impose a system of proportional representation (PR) for future federal elections. PR allocates seats based on the total number of votes cast; a party that receives 10 percent of the vote would automatically get 10 percent of the seats – or as close as is mathematically possible. “The adoption of a PR system in Canada,” the brief reads, “would produce governments that represent virtually all voters, effectively represent minority views, respect the principle of majority rule, provide voters with choices close to their ideological preferences, encourage voter participation and satisfaction, and proportionally represent women and minorities in Parliament.”
It is not the purpose of democracy to create a legislature that perfectly mirrors the political diversity of the population or leaves everyone feeling content.
Despite an exhaustive list of PR’s purported benefits, in November the court rejected the groups’ novel constitutional argument. Superior Court Justice Ed Morgan ruled that FPTP is wholly aligned with the Charter and its Section 3 requirement that voters be treated fairly and equally. “The existing [FPTP] system is compliant with the Constitution and need not change,” he stated succinctly. Beyond the fact his ruling fended off a plan by a few noisy activists to execute an end-run around Parliament’s lawmaking powers, Justice Morgan’s ruling also serves as a useful reminder that Canada is actually better off with FPTP than without it.
It is not the purpose of democracy to create a legislature that perfectly mirrors the political diversity of the population or leaves everyone feeling content. Attempts to create such a thing in other countries habitually produce governments marred by unpredictability, instability and a lack of accountability. Rather, the ideal electoral system is one that allows regular and free elections to yield elected representatives who are transparent in their policy intentions and easily held to account by the public. As the evidence shows, FPTP is the best way of achieving this.
Ontario Superior Court Justice Ed Morgan recently rejected Fair Voting BC’s lawsuit demanding the courts impose PR, ruling that FPTP is aligned with the Charter of Rights and Freedoms and its Section 3 requirement that voters be treated fairly and equally. (Source of right image: Courtesy of Department of Secretary of State, Canada)Admittedly, no system is perfect. But any dissatisfaction Canadians may feel about their current electoral system ought to be directed elsewhere. Instead of changing how we elect MPs, we should focus on improving the ability of MPs to represent the opinions and serve the interests of their constituents. If we really want to improve Canadian democracy, we should keep FPTP and get rid of party whips.
Duverger’s Law
Claims that PR is democratically superior to FPTP arise, in part, from the work of mid-20th-century French socialist politician and academic Maurice Duverger. Duverger’s Law states that any country operating under FPTP will inevitably gravitate to a two-party system, the U.S. being the prime example of this phenomenon. While smaller parties may better represent the interests of individual voters, under FPTP voters are pushed to support larger, “big tent” parties, since these have a better chance of winning a plurality. Embedded within this theory is the assumption that FPTP encourages habitual “strategic” voting, which leads voters to support parties that don’t necessarily align with their own preferences or beliefs in the hope that their vote will “count” by helping to elect the winning party.
This problem of strategic voting, Duverger argued, can be remedied by PR. A proportional distribution of votes encourages and sustains the existence of many different parties. Belgium, for example, uses a PR system and often has seven or more parties contesting elections. The Netherlands boasts more than a dozen parties in both its upper and lower houses. With so many parties on offer, there’s likely to be at least one that closely matches a voter’s individual preferences. And since every vote counts towards the seat total, voters are supposedly spared the indignities of strategic voting.
There are some obvious problems with Duverger’s Law. The first and most obvious is that Canada at the federal level boasts three competitive parties (plus the Bloc Québécois) despite a long reliance on FPTP. So do many provinces. The same goes for Great Britain. And even if we consider strategic voting to be a problem, it occurs regardless of the electoral system in place. More recent academic research into the role and prevalence of strategic voting reveals that allocating seats on a proportional basis only gives the impression that strategic voting is not going on.
In truth, voters act strategically under both FPTP and PR systems. The difference is that PR voters are not necessarily concerned with which party wins the most seats, but rather which parties are likely to be included in any resulting coalition government. Because PR makes it nearly impossible for a single party to win an outright majority of votes, a coalition of several parties is generally required to form government. Under this scenario, voters will often abandon their “favourite party” for one that is more likely to participate in a multi-party government. And research shows the chances that voters will act in such a strategic way can be even higher under PR than FPTP, given the greater number of parties and the volatility of coalitions. Allocating votes proportionately is thus no more or less democratic than allocation by plurality, at least where strategic voting is concerned.
Can’t We All Get Along?
Another key aspect of evaluating electoral systems concerns public approval and accountability. PR supporters frequently argue their favoured system’s tendency to produce multi-party governments is a positive thing. This is because coalition governments depend on compromises made by the participating coalition partners who together represent a majority of the voting public. Thus, policy choices are said to broadly reflect the ideological diversity of the coalition and, by extension, most voters.
And since all the governing parties must participate in any compromise – with disagreements threatening a paralysis, if not collapse, of the government – PR is assumed to hold government to account. This is in contrast to FPTP, where most majority governments never come close to winning a majority of the votes but still get to impose their platform on the country. In 2015, for example, the Justin Trudeau government won 54 percent of the seats with fewer than 40 percent of the votes. And with that comfortable majority, reneged on its earlier election promise that “the 2015 election will be the last federal election using first-past-the-post.”
While the claim that PR promotes compromises and hence encourages broad public approval may sound appealing, it fails on closer inspection. In fact, coalition governments are less accountable and less predictable than governments elected under FPTP. This is because voters have no control over which parties are included in any coalition or how they sort out their internal differences. Smaller parties will often do whatever it takes to gain a position in the governing cabinet, in many cases abandoning or bargaining away central platform items. And the resulting deals are often absurd and arbitrary. A party with a poor reputation for economic matters could, for example, end up with responsibility for finance.
Germany’s Green Party offers a current perspective on this abandonment phenomenon. As one of three parties in the coalition government of Chancellor Olaf Scholz, the Greens recently forced the Scholz government to pass environmental legislation that will rapidly transition German homes away from fossil fuel heating. This despite the fact most Germans are clearly opposed to such a measure.
At the same time, Green supporters are aghast that their party is supporting a government that has reopened a large lignite coal mine in western Germany to generate urgently needed electricity, requiring the destruction of an entire village. By allowing Greens to hold sway over his government, Scholz has thus angered voters who preferred the position of the other two parties in his coalition on the home heating bill, and then also angered Green voters who want an immediate end to coal-generated power. Rather than reaching a happy compromise, it seems PR has left everyone in Germany unhappy.
Undue influence: PR often results in coalition governments in which small parties can force big changes; Germany’s Green Party pushed Chancellor Olaf Scholz (left) to adopt legislation rapidly transitioning homes away from fossil fuels, despite widespread public opposition, then found its own supporters angry when the government re-opened a lignite coal mine in the village of Luetzerath, near Frankfurt. (Sources of photos: (left) oscepa, licensed under CC BY-SA 2.0; (right) Constantin Zinn Photo/Shutterstock)
FPTP generally avoids the endless cycle of compromises and disagreements created by coalition governments. Since Confederation, Canada has elected far more majority governments than minority ones; the current tally is 28 majorities to 16 minorities. A party that achieves a majority can implement its platform without having to make deals with other parties. This is aligned with democratic accountability and predictability. When people vote for a particular party, they presumably wish to see that party’s policies implemented in full, not some smorgasbord of platforms taken at random from other parties.
And even in the case of minority governments, formal coalitions are rare in Canada. Rather, the governing party tends to make transparent or ad hoc deals with other parties, as is the case with the Supply and Confidence Agreement between the current Trudeau government and the NDP. In this way, voters can be broadly confident that a governing party will follow, or attempt to follow, its own election promises. Also, when a coalition government is formed under FPTP, it tends to be more manageable since there are fewer parties involved.
Out the Door
Another benefit of FPTP is that voters who are dissatisfied with a government or feel their lives have not improved under a party’s policies can eject the ruling party outright at the next election. Canada has numerous examples of this process, including the 1993 federal election in which the Progressive Conservatives went from a comfortable majority government to a two-seat rump under leader Kim Campbell. Clearly the voters wanted her party out of power. Voters can also send a more muted message though the ballot box by reducing a government from majority to minority status, as happened with the federal Liberals in the last two elections. Conversely, voters can reward a minority government they feel has done a good job by raising it to a majority, as occurred with Stephen Harper’s Conservatives in 2011.
Popper argued the purpose of democracy is not to pick the best government, but to ensure bad governments can be removed quickly and efficiently. For this reason, he argued that PR has a ‘detrimental effect on the decisive issue of how to get rid of a government.’
While governments under FPTP are always facing potential electoral annihilation, PR can allow parties that have been soundly rejected by voters to retain influence and office through undemocratic backroom deals. Consider Ontario’s 2018 provincial election. After 15 years of Liberal rule, voters were clearly tired of Premier Kathleen Wynne’s government and handed her a resounding defeat; her party earned a mere 20 percent of the vote while Doug Ford’s Progressive Conservatives took 40 percent, and a huge majority of the seats. If this election had occurred under PR rules, however, Wynne could have engineered a coalition deal with the NDP (which gained 30 percent of the vote) and found a way to stay in power – even though a huge majority of voters wanted her gone.
“Day of Judgment”: Austrian philosopher Karl Popper (left) said the purpose of democracy is not to elect the best government but to ensure bad ones can be removed decisively; former Canadian prime minister Kim Campbell (right) experienced exactly that when her majority Progressive Conservative government was reduced to a two-seat rump in 1993. (Sources of photos: (left) Medium; (right) SFU – Communications & Marketing, licensed under CC BY 2.0)
“Election day ought to be a Day of Judgment,” Austrian philosopher Karl Popper remarked in 1988. Popper is most famous for his work on the philosophy of science, and in particular the scientific method of conjecture and refutation which allows for the rigorous elimination of false theories. Popper asserted that the purpose of democracy is not to pick the best government, but to ensure bad governments can be removed quickly and efficiently. For this reason, he argued that PR has a “detrimental effect on the decisive issue of how to get rid of a government.” Between elections, in Canada, it is the duty of His Majesty’s Loyal Opposition to hold a government to account in Parliament, complemented by an engaged public informed by an attentive media.
Extremist Reduction
In addition to poor government accountability, PR also tends to allow fringe parties to find a way into a parliament which, in turn, can give a greater public voice to extremism. It is much easier to win a few seats if they are allocated proportionally across an entire country than if seats must be won individually on a riding-by-riding basis as is the case under FPTP. In this way, small, radical parties can work their way into government once they establish an electoral foothold. Last year, for example, Slovakia’s leftist Prime Minister Robert Fico formed a coalition government with another left-wing party, Voice: Social Democracy, and the much smaller hardline nationalist Slovak National Party, known by its Slovakian acronym SNS.
Under PR, mainstream parties with extremist partners such as SNS must find ways to keep them satisfied by including at least a few of their policy ideas in the government’s agenda. This can result in small fanatical parties gaining disproportionate sway, leading to a slow erosion of democracy. Keep in mind that it was a series of backroom deals and coalitions under a PR system that allowed Adolf Hitler’s National Socialist German Worker’s Party to eventually seize power in Germany in 1933. By steering voters towards larger and more moderate parties that reflect a broader swath of public opinion, FPTP tends to limit the reach of destabilizing extremist parties.
Unintended consequences: PR sometimes helps fringe parties find their way into coalition governments and force their policies onto the agenda; a series of backroom deals and coalitions allowed Adolf Hitler’s Nazi party to work its into office in 1933. Shown, uniformed members of the infamous Sturmabteilung (SA) parade down a city street in Duisburg, circa 1928. (Source of photo: US Holocaust Memorial Museum, courtesy of Dottie Bennett, retrieved from Holocaust Encyclopedia)Like Butterflies, MPs Should Be Free
The benefits of the existing FPTP system are reflected in Canadians’ apparent contentment with our democratic process. According to a 2022 Pew Research Center poll on democracies around the world, Canada is among the most satisfied countries with 57 percent of voters approving of how our democratic system works. And yet, with 43 percent of Canadians feeling unsatisfied, there is obviously still room for improvement. To get there we don’t need to change how we elect MPs. Rather, we should make the House of Commons a better place for those MPs we do elect.
There is no constitutional requirement that Canadian democracy entail rigid party discipline or overbearing leaders. The Constitution simply requires that MPs be elected fairly and impartially. Once they get to the House of Commons, they may join forces however they wish and – theoretically, at any rate – vote in any way they see fit. And yet the Westminster-style parliamentary system used in the UK, Canada, Australia and many other Commonwealth countries places enormous power in the hands of party leaders and, in particular, the prime minister. Canada’s party leaders have become so powerful, in fact, that political scientist Donald Savoie has called the prime minister “the Sun King of Canadian government,” a reference to the absolutist powers wielded by France’s 17th-century King Louis XIV, the Sun King.
This almost-monarchical authority can be seen in the fact that any MP who breaks party discipline by speaking out of turn or voting against the party line can expect to face severe consequences. The party’s whip – a senior MP charged with maintaining party discipline and, in particular, ensuring that MPs turn out in sufficient numbers to win votes in the House of Commons – can mete out a wide range of punishment for dissenters: everything from not being able to ask questions during Question Period to being denied the opportunity to run under the party banner in future elections. This subordination of MPs to their leaders violates the older principle of parliamentary privilege that is supposed to ensure all MPs are free from intimidation in how they act and speak in the House.
As a result of stifling party discipline, MPs are routinely forced to obey the demands of their leader at the expense of the interests of their constituents. This in turn has estranged elected representatives from their electorate. In the UK, according to the BBC, most British voters can’t even name their own MP, which suggests how useless and unimportant they have become. Unfortunately, no similar survey exists for Canada.
Expanding the independence of individual MPs could become a powerful mechanism to improve accountability and increase public engagement in the political process. It should also appease many PR supporters since it delivers something they seem to value highly – compromise.
It is obviously impossible to eliminate party politics from Canadian democracy. Convention and practice mean that MPs depend on their party in many significant ways – from fundraising to policy statements to brand name recognition. With the cost of a contested election in the range of $100,000, most individual candidates need the backing of a party and its infrastructure to be competitive. But ideally, parties should operate as looser organizations in which MPs with similar beliefs can voluntarily back one another’s policy proposals. Canadian parliamentary democracy should not be a system that strips MPs of their capacity to listen and react to the people who voted for them.
A Dose of Reform
Restoring some portion of the independence historically enjoyed by individual MPs has been a longstanding demand of many Canadians voters. It was one of the preoccupations of the Reform Party of Canada, with the party’s 1988 election platform including substantial proposals on more free votes, greater accountability for MPs and “direct” democracy measures such as binding referendums on critical questions.
More recently, Conservative MP Michael Chong’s Reform Act has carried on this tradition. Passed by Parliament in 2014, it seeks to limit the power of party leaders by giving more rights to individual MPs. In particular, a caucus of MPs can trigger a leadership review within their party, which can limit the king-like powers of party leaders. Unfortunately, the Reform Act’s provisions are not mandatory; it is up to each individual party in the House of Commons to adopt them. So far, only the Conservative Party has embraced – and applied – Chong’s new rules. The removal of former leader Erin O’Toole through a secret-ballot vote by Conservative MPs five months after the 2021 election demonstrates the law’s potency.
Introduced by Conservative MP Michael Chong (top), the Reform Act would give more rights to individual MPs and allow them to trigger a party leadership review; only the Conservative Party has embraced – and applied – the new rules, using them to remove former leader Erin O’Toole (bottom) in 2021. (Source of top photo: The Canadian Press/Sean Kilpatrick)
Expanding the independence of individual MPs could become a powerful mechanism to improve accountability and increase public engagement in the political process. It should also appease many PR supporters since it delivers something they seem to value highly – compromise. PR tries to artificially impose compromise by offering seats to a multiplicity of parties which must then come to an agreement on how to form government. Providing MPs with greater independence to act, speak and vote on behalf of their constituents will also yield compromises, as elected representative work together outside party discipline. But such compromises will be the natural outcome of honest discussions between independent-minded MPs, not an arbitrary result imposed by a flawed system.
For Canadians dissatisfied with the current state of their democracy, replacing FPTP with PR is not the solution. As we have seen, PR produces governments that are unaccountable, unpredictable and inconsistent. And for anyone worried about strategic voting, that is as common under PR as FPTP. We should keep our current system for electing politicians and instead look for ways to improve their scope for independent action. Above all else, MPs must be answerable to the people who elected them.
Nolan Albert is a political science student at the University of Calgary. This essay is an edited version of his grand-prize winning submission to the 1st Annual Patricia Trottier and Gwyn Morgan Student Essay Contest sponsored by C2C Journal, the Aristotle Foundation, the Institute for Liberal Studies and Generation Screwed.
Source of main image: Ryan Hodnett, licensed under CC BY-SA 2.0.
